[¶ 1] Bradley Davis appeals from a district court order dismissing his motions for leave to depose witnesses and summarily dismissing his post-conviction relief application. Because Davis produced no competent evidence to support his motion to depose Angela Cook, and the evidence he seeks to obtain by deposing Graylan Bobo and Angela Cook would not likely result in an acquittal, it was not an abuse of discretion to deny his motions for leave to depose Cook and Bobo. The district court did not err by summarily dismissing his post-conviction relief application because no showing has been made that a genuine issue of material fact exists. We affirm.
I
[¶ 2] In 2008, Davis was convicted of aggravated assault on Joshua Velasquez, and his codefendant, Antonio Stridiron, was convicted of murdering Velasquez after an early morning altercation at a July 2007 party. Their convictions were affirmed in a consolidated appeal in State v. Stridiron,
[¶ 3] In April 2010, Davis filed a pro se post-conviction relief application. In the application, he asserted he had newly-discovered evidence but did not provide further detаil. In December 2010, the State moved to summarily dismiss Davis’s application arguing Davis failed to raise a genuine issue of material fact. In early January 2011, Davis opposed the State’s motion asserting his new evidence would support his contention he did not assault Velasquez, but rather acted in self-defense. Later that month, Davis’s newly-appointed attorney also filed a brief in opposition to
I Charles Price would like to revise my statement I, under penalty of perjury to disclose the truth concerning these proceedings that I made on the night of July 27, 2007 against [Bradley] Davis and [Antonio] Stridiron and I wоuld like to talk to legal Counsel about this.
[¶ 4] In September 2011, the district court held a status conference hearing on Davis’s application. Davis’s attorney told the court his continued efforts to contact Price were unsuccessful as Price had neither responded to his letters nor returned a proposed affidavit. Just before the hearing, Davis told his attorney of an individual in the area he believed to be Pricе’s girlfriend, Angela Cook. Davis asserted that Cook could testify Price was not present at the July 2007 altercation because she was with Price on the night of the assault and, therefore, Price’s trial testimony regarding Davis’s involvement in Velasquez’s death was fabricated. Davis’s attorney sought additional time to contact Cook. The State requested summary dismissal. The district court granted Davis additional time to contact Price аnd Cook and stated it would conduct a “status check” in February 2012.
[¶ 5] In December 2011, Davis’s attorney filed a motion for leave to depose Angela Cook and filed a brief in support of his motion that included an offer of proof of Cook’s anticipated testimony. Davis’s attorney asserted Cook originally agreed to sign an affidavit stating she was with Price at a different location the night of the assault, but Cook had not responded to his subsequent requests. The State opposed the motion for leave to depose Cook and again moved for summary dismissal.
[¶ 6] The court scheduled a hearing in February 2012 to show cause why it should not grant the State’s motion for summary dismissal. Davis’s attorney informed the court that Davis’s wife recently told him of an inmate, Graylan Bobo, who could offer evidence Price had told Bobo that Price was not present during the assault and was not truthful at trial. The district court gave Davis until March 8, 2012, to submit competent admissible evidence to support his motion for leave to depose Cook or it would deny his motion and dismiss his post-conviction relief application. Davis’s attorney then filed a motion for leave to depose Bobo and filed an affidavit from Bobo, stating Price had told Bobo, while they were incarcerated tоgether, that Price did not witness the July 2007 assault and lied at trial to facilitate his own plea agreement. In March 2012, the State opposed Davis’s motion to depose Bobo and again moved for summary dismissal. Davis did not file a motion for leave to depose Price.
[¶ 7] In May 2012, the district court denied Davis’s motions for leave to depose Cook and Bobo and summarily dismissed
II
[¶ 8] On appeal, Davis argues the district court abused its discrеtion in denying his motions to depose Cook and Bobo, because without their depositions, he cannot prove Price lied at trial. Consequently, Davis argues, the district court erred in summarily dismissing his post-conviction relief application.
[¶ 9] “Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure.” Wheeler v. State,
[¶ 10] Davis’s 2010 post-conviction relief application asserted he had newly-discovered evidence favorable to him. Though Price purportedly sent his April 2009 note on his own accord, Price has not followed up and provided any other information. Price has nоt responded to any correspondence from Davis’s attorney, and at no time has Price indicated how he would “revise [his] statement.”
[¶ 11] Once the State moved for summary dismissal, Davis had the burden to support his application with competent admissible evidence. Because he was unable to secure admissible evidence from Price, Davis sought to support his assertion by deposing Cook and later Bobo. Under N.D.C.C. § 29-32.1-08, “[t]he court, for good cause, may grant leave to either party to use the discovery procedures available in criminal or civil proceedings.” See also Mertz v. State,
The district court abuses its discretion only when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. The party seeking relief must show more than the district court made a “poor” decision, but that it positively abused the discretion it has....
Investors Title Ins. Co. v. Herzig,
[¶ 12] In Wheeler, this Court upheld a district court’s denial of a post-conviction relief applicant’s request for subpoenas noting an evidentiary hearing would be nothing more than a “fishing expedition” because “Wheeler failed to provide any competent evidence to show even minimal support for his assertion of juror misconduct. ...”
[¶ 18] Federal habeas petitioners seeking leave for discovery must also show good cause. “A judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of discovery.” Rules Governing 28 U.S.C. § 2254 Cases, Rule 6(a). The United States Supreme Court has stated the Rule 6(a) good cause standard means “where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.” Bracy v. Gramley,
[¶ 14] To obtain discovery under N.D.C.C. § 29-32.1-08’s good cause standard: (1) the evidence sought to be discovered, if established, must allow the applicant to obtain relief under N.D.C.C. § 29-32.1-01, and (2) contain specific and particularized allegations. Accord Ex parte Perkins,
[¶ 15] Because post-conviction relief cases are not an opportunity to relitigate issues, Steen v. State,
[¶ 16] Here, Davis filed his post-conviction relief application in early 2010. At that time, he asserted he had newly-discovered evidence favorable to him; however, he was ultimately unable to contact Price and focused his attention on Cook. Davis first asserted Cook had relevant evidence in September 2011, and Davis filed a motion fоr leave to depose Cook in December 2011. His attorney had approximately seven months to secure some minimal amount of evidence from her to convince the district court the facts he sought to develop would lead to relief but was unable to support his motion. Despite Cook’s purported initial willingness to provide information about Price, she did not respond to subsequent efforts to contact her. In denying Davis’s motion for leave to depose Cook, the court noted it specifically told Davis’s attorney on February 7, 2012, that he had one more month to secure competent admissible evidence by affidavit or other comparable means or his motion would be denied. Davis provided nothing to support his motion.
[¶ 17] Davis had the burden to show good cause for leave to use discovery, and as in Wheeler, we conclude Davis has not provided any competent evidence from Cook to support his speculative, unsubstantiated assertion Cook has evidence that Price lied at trial. The district court did not abuse its discretion in denying his motion for leave to depose Cook.
[¶ 18] Unlike his motion for leave to depose Cook, Davis submitted an affidavit from Bobo in support of his motion for leave to depose Bobo. Davis asserts this new evidence “proves” he was acting in self-defense and did not assault Velasquez, contrary to Price’s testimony. The State asserts that Bobo’s affidavit statement is hearsay and is unreliable, Davis is attempting to establish recantation testimony of Price through Bobo, and the verdict was not based solely on Price’s testimony.
[¶ 19] A district court may grant post-conviction relief when “[e]vi-dence, not рreviously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice.” N.D.C.C. § 29-32.1-01(l)(e). “[T]his statutory ground for post-conviction relief is similar to a request for new trial based on newly discovered evidence under
To prevail on a motion for new trial on the basis of newly discovered evidence under N.D.R.Crim.P. 33, the defendant must show: (1) the evidence was discovered after trial, (2) the failurе to learn about the evidence at the time of trial was not the result of the defendant’s lack of diligence, (3) the newly discovered evidence is material to the issues at trial, and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal.
Tweed v. State,
[¶ 20] Here, applying the four-prong test, the district court found: (1) the evidence was found after trial; (2) it was possible for Davis to have discovered Bobo and elicited a statement from him prior to or during the trial; (3) the evidence was material; and (4) the weight and quаlity of the evidence would not likely result in an acquittal. We agree.
[¶ 21] Though Davis asserts the evidence he seeks would establish he acted in self-defense, other testimony from his criminal trial undercuts his assertion. Rodney Robinson testified he saw Daws and others telling Velasquez to leave the area, and Davis and Velasquez got into a fist fight. A few minutes later, Davis left and retrieved a rake with a pole and sharp blade, and Davis wаs swinging it at Velasquez telling him to leave. Robinson testified Davis hit Velasquez a couple times as Velasquez was backing up. Velasquez appeared to be leaving or forced back, and Robinson testified, “[Velasquez] got a little ways down the alley and [Davis] hit him or he swung it and I think it hit him and [Velasquez] went down.” Robinson testified Davis then walked away as Velasquez was on the ground, and Stridiron shot Velasquez. As we noted in Davis’s sufficiency of the evidеnce appeal, “[s]everal witnesses testified about seeing Davis leave the duplex with a garden implement, and either hearing or seeing Davis striking Velasquez numerous times with the garden tool and inflicting serious injuries.” Stri-diron,
[¶ 22] Contrary to Price’s testimony at the criminal trial that Davis repeatedly struck Velasquez from behind, Davis now seeks to show he hit Velasquez from the front to support his purported self-defense argument. However, еven if it were shown Davis did not hit Velasquez from the back, Robinson’s testimony is sufficient to support an aggravated assault charge. His testimony shows that, after the fist fight, Davis left and returned with a weapon, forced Velasquez away from the area, and struck Velasquez with the weapon knocking him down. While Davis asserts this was in self-defense, the jury did not agree.
[¶ 23] Davis has not shown that the evidence obtained from Bobo, an individual incarcеrated in the same institution as Davis, if established, would likely change the result in the original trial. Consequently, he cannot establish the first prong of N.D.C.C. § 29-32.1-08’s good cause standard because, even assuming the evidence he seeks is true, it will not support his request for relief.
[¶ 24] Further, the district court noted that the trial jury had heard evidence from
Ill
[¶ 25] Davis argues the district court erred by summarily dismissing his post-conviction relief application. “This Court reviews an appeal from a summary dismissal of post-conviction relief as it would review an appeal from summary judgment.” Overlie,
[¶ 26] Davis has had over two years between the filing of his application and its dismissal to come forward with some form of competent, admissible evidence to support his assertion that he has evidence requiring vacation of the conviction. Davis has failed to do so.
IV
[¶27] The district court order is affirmed.
Notes
. The record is not clear when the information about Price was first presented to the district court.